Jarman v. Deason , 173 N.C. App. 297 ( 2005 )

CALABRIA, Judge.

Barbara A. Jarman (“plaintiff”) appeals from a trial court judgment dismissing her claim for wrongful discharge on the basis of age discrimination against Jim Deason, d/b/a Deason Landscape & Irrigation (“defendant”). We affirm.

Plaintiff’s 9 June 2003 complaint, as later amended, alleged the following facts. On or about 24 March 2003, defendant “advised [plaintiff] that even though she was doing a good job, she was ‘getting some age on her’ and [discharged] her.” At the time of her discharge, plaintiff was fifty-two years old and had been employed by defendant for approximately eight years and seven months as an employee-at-will working in the area of lawn maintenance, landscaping, and irrigation. Plaintiff worked with defendant longer than any other employee, was considered a good employee, received wage increases during her employment from $5.00 per hour to $9.50 per hour, was physically capable of continuing her employment, and intended to continue working with defendant past her retirement age of sixty-five. Defendant did not contest plaintiffs application for unemployment benefits, which stated she was discharged due to her age. As the basis for her claim plaintiff alleged, “[A]lthough Defendant does not employ 15 full-time employees, it is, on information and belief, against the public policy of the State of North Carolina to allow discrimination on the basis of age.” On 24 May 2004, the trial court granted defendant’s motion to dismiss plaintiffs complaint for failure to state a claim upon which relief may be granted under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2003). Plaintiff appeals.

“On a Rule 12(b)(6) motion to dismiss, the question is whether, as a matter of law, the allegations of the complaint, treated as true, state a claim upon which relief can be granted.” Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002). On appeal, plaintiff asserts the trial court erred by dismissing her complaint under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) on the grounds that the legislature, via N.C. Gen. Stat. § 143-422.2 (2003), has declared it against the public policy of this State to discriminate based on age. Defendant rejoins that dismissal was proper under N.C. Gen. Stat. § 143-422.2, which provides as follows:

It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.

It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment foments domestic strife and unrest, deprives the State of the fullest utilization of its capacities for advancement and development, and substantially and adversely affects the interests of employees, employers, and the public in general[¹]

For reasons that follow, we are of the opinion that defendant’s interpretation regarding the legislature’s expression of public policy in N.C. Gen. Stat. § 143-422.2 is correct and affirm. “The general rule in North Carolina is that absent ‘constitutional restraint, questions as to public policy are for legislative determination.’ ” In re Phillip Morris, 335 N.C. 227, 230, 436 S.E.2d 828, 830 (1993) (quoting State v. Whittle Communications, 328 N.C. 456, 470, 402 S.E.2d 556, 564 (1991). In the instant case, the legislature has clearly and distinctly set forth this State’s public policy with respect to employment discrimination. Our legislature has specifically prohibited employment discrimination on certain enumerated bases by employers of fifteen or more people and deemed such discrimination to be contrary to the interests of the public. Our Supreme Court has noted that, where the legislature is clearly aware of a practice challenged on public policy grounds and knows how to forbid it but chooses not to, the proper course of action is to recognize and honor the legislative determination. Id. Thus, where, as here, the General Assembly has set forth the public policy of this State and limited the application of the policy to employers of fifteen or more people, it is not the province of this Court to superimpose our own determination of what North Carolina’s public policy should be over that deemed appropriate by our General Assembly. This holding is not an endorsement of such practices; rather, it is a recognition of the respective functions of the judiciary and legislature. Defendant’s actions, regardless of how repugnant we may find those actions, are not prohibited by the public policy as established by our General Assembly, and relief must come from the appropriate governmental body.

Plaintiff nevertheless asserts that “th[is] Court is not limited by the legislature. The Court is free to determine, on its own, whether an act on the part of an employer in an at-will employment situation violates the public policy of this state.” Plaintiff cites various cases concerning discrimination on bases other than those specifically enumerated in N.C. Gen. Stat. § 143-422.2. See, e.g., Simmons v. Chemol Corp., 137 N.C. App. 319, 528 S.E.2d 368 (2000) (concerning employment discrimination on the basis of physical impairment); Lenzer v. Flaherty, 106 N.C. App. 496, 418 S.E.2d 276 (1992) (concerning termination of employment due to an employee’s exercise of his right to free speech); Coman v. Thomas Mfg. Co., 325 N.C. 172, 381 S.E.2d 445 (1989) (concerning termination of employment due to employee’s refusal to violate state and federal transportation regulations). However, those cases cannot avail plaintiff precisely because they involve bases not encompassed by the language of the statute. There is a marked difference between recognizing additional bases not enumerated in the statute and changing the criteria of the bases that are specifically enumerated. In the first instance, the General Assembly has declared the contours and existence of this State’s public policy, and the Court is not faced with the task of overriding that which has been set forth. In the second instance, the Court is forced to countermand the determination of the General Assembly in favor of our own. We do not believe that to be the proper function of this Court.

Affirmed.

Judge TIMMONS-GOODSON concurs. Judge GEER concurs in a separate opinion.

1 . We note both Title VII and the Age and Employment Discrimination Act contain the similar numerical thresholds of employees below which they do not apply. Title VII prohibits discrimination on the basis of “race, color, religion, sex, or national origin” by an employer “who has fifteen or more employees for each working day in each of twenty or more calendar weeks.” 42 U.S.C. § 2000e (2005). Under the Age and Employment Discrimination Act, an employer, “who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year[,]” 29 U.S.C. § 630 (2005), is prohibited from “fail[ing] or refusing] to hire or discharging] any individual or otherwise discriminating] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a) (2005).